Monday, August 11, 2008

Issues: A


1. Whether the federal search warrants for the Defendants’ email accounts are valid under federal law?

Suggested Answer: YES.

2. Whether the slate search warrant for the Defendants’ email account is valid under Pennsylvania law?

Suggested Answer: YES.

3. Whether the ‘good faith’ exception for search warrants has been met.

Suggested Answer: YES.

4. Whether the email account evidence was also discovered by Pennsylvania authorities pursuant to the independent source and inevitable discovery doctrines.

Suggested Answer: YES.


The Fourth Amendment of the United States Constitution governs all searches and Seizures conducted by government agents. Specifically, the Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issued, but upon probable cause, supported by Oath and affirmation, and particularity describing the place to be searched, and the persons or things to be seized.”

The United States Supreme Court defines probable cause to search as “a fair probability that contraband or evidence of a crime will be found in a particular place”. See Illinois v. Gates 462 U.S. 213, 238 (1983); Ornelas v. United States, 517 U.S. 690, 695 (1996). The Supreme Court stated in Gates that “this requires a practical, common-sense determination of the probabilities, based on a totality of the circumstances.”

“Importantly, the probable cause requirement does not require agents to be clairvoyant in their knowledge of the precise forms of evidence or contraband that will exist in the location to be searched... and agents do not need probable cause to believe that the evidence sought will be found in computerized (as opposed to paper) form.” See United States v. Reyes 798 F.2d 380, 382 (10th Cir. 1986).

“Probable cause is a two-fold standard that each step warrants a different level of appellate determination. Judges must determine the “historical facts”, that is, the events that occurred leading up to the stop or search. See Id. at 696. Next, the Judges must determine whether or not these historical facts amount to probable cause. Id. at 696.

“The facts supporting probable cause come from multiple sources. First, the facts can come from the reliable experience of the police officer or investigators. Next, the information may be considered reliable. Evidence seized during an investigation can be used as probable cause. Finally, the defendant’s presence at or near a crime scene.” See Schneckloth v. Bustamonte 412 U.S. 218,(1973).

“The warrant requirement pursuant to federal case law mandates that warrants must be issued by an impartial judicial officer who must assess whether the police have probable cause to make the arrest, to conduct a search or to seize evidence, instrumentalities, and fruits of a crime or contraband,” See Warden v. Hayden 387 U.S. 294, 301 at 302 (1967).

Even if the computer forensic examination conducted upon the computers seized from the Defendants’ residence was suppressed, there is still sufficient probable cause in the affidavits for the federal search warrants for the email account and Harlow Cuadra’s MySpace account. Even if the computers seized from the Defendants’ residence were to be suppressed, which the Commonwealth argues they should not be suppressed, the Commonwealth submits that the search warrants for the Defendants email addresses still contain sufficient probable cause. Furthermore, at the time the March 14, 2007 search warrants were executed for the questioned MySpace account of Harlow Cuadra and the questioned, the computer forensic examination process had just commenced and was not completed until several months later. The authorities did not even have the opportunity to rely on any information gained from the computer forensic examination of computers seized from the Defendants’ residence.

The affidavits of probable cause for the search warrants for the questioned MySpace account of Harlow Cuadra and the questioned account do not rely upon any evidence seized pursuant to the execution of the February 10, 2007 search warrant on the Defendants’ residence. (‘Search Warrants Served on Email Accounts of Harlow Cuadra’ and ‘Search Warrants Served on Email Accounts of Joseph Kerekes’, both filed by the Commonwealth as bound exhibits on July 7, 2008.) Although the search warrants very briefly reference the execution of the February 10, 2007 warrant at section 28 on page 11 of the respective affidavits, there is no indication that investigators relied on any information obtained from the Defendants’ alleged illegally seized computers (or anything else obtained from Defendants’ residence) to request the Defendants’ email account information. A close reading of the respective affidavits show that, among other information relied upon, the Defendants contacted Grant Roy through Cuadra’s MySpace account on March 3, 2007 with threats regarding the commencement of filming pornographic films, (See pg. 16 of the ‘Affidavit of James J. Glenn in Support of Application for Search Warrant’.) Sgt. Gary Thomas of the Pennsylvania State Police was made aware of this information on March 8, 2007. Sgt. Thomas made Special Agent Glenn aware of this information on March 9, 2007 for inclusion in his Affidavit for Harlow Cuadra’s MySpace account information. Also, a Ryan Anderson contacted the Pennsylvania State Police in reference to the homicide investigation and directed Troopers to Cuadra’s MySpace page where the public could view photos of Cuadra with Sean Lockhart. Id. at sec. 20 pg. 8.

The Affidavit of Probable Cause for the email account mirrors the one discussed above for Harlow Cuadra’s MySpace account. The affidavit outlines the close association between Cuadra and Kerekes and their known activities and contacts prior to the homicide of Bryan Kocis, and that information obtained from the Defendants’ email accounts would further the investigation into the homicide. It outlines that is a business associated with both Cuadra and Kerekes; this information was obtained by the Pennsylvania State Police Criminal Intelligence Center (See Affidavit at sec. 23 on pg. 9.) and was not related to the February 10, 2007 execution of the search warrant on the Virginia Beach residence. Joseph Kerekes is listed as the registrant and administrative contact for with a contact email address of (See Affidavit at sec. 33 on pg. 16.) Furthermore, the website had a post which included a picture of Harlow Cuadra; Cuadra’s associated email address for that post was listed as (See Affidavit at sec. 33 on pg. 17.)

The Affidavit of Probable Cause for these two warrants makes no reference as to how any information seized from the Defendants’ residence led to the discovery of stareyes23510 or Cuadra’s MySpace account. To the contrary, there is a substantial amount of probable cause unrelated to the seizure of evidence from the Defendants’ residence.